Last week the Ninth Circuit denied en banc hearing in Junior Sports Magazines, Inc. v. Bonta, saving youth gun training from destruction by a leftist attack on gun culture. While there has not yet been a decision on the merits of the case, denial of en banc let stand the Ninth Circuit three-judge panel ruling reversing the district court’s denial of preliminary injunction against enforcement of California Business and Professions Code § 22949.80, as it is “likely unconstitutional” under the First and Fourteenth Amendments, using an intermediate scrutiny standard of review as it regulates commercial speech. The law, commonly known as AB 2571, prohibits the advertising of any “firearm-related product in a manner that is designed, intended, or reasonably appears to be attractive to minors.”
The panel held that California “cannot ban truthful ads about lawful firearm use among adults and minors unless it can show that such an intrusion into the First Amendment will significantly further the state’s interest in curtailing unlawful and violent use of firearms by minors.
But given that California allows minor to use firearms under adult supervision for hunting, shooting, and other lawful activities, California’s law does not significantly advance its purported goals and is more extensive than necessary.”
For example, “the state has provided no evidence—or even an anecdote—that minors are unlawfully using firearms because of advertisements for guns by the firearm industry.”
“To start with the obvious, a state may not restrict protected speech to prevent something that does not appear
to occur…. Yet here—despite enacting a bill whose statement of purpose assertsthat “[f]irearms marketing contributes to the unlawful sale of
firearms to minors”—the state admitted at oral argument that it is unaware of a single instance in which a minor unlawfully bought a firearm in California (presumably because a minor would not pass background check and other requirements)…. And if the state cannot
cite a single case of a minor in California unlawfully buying a gun, then an advertisement about firearms logically could not have contributed to such a sale.”
“We thus hold that § 22949.80 facially regulates speech whose content concerns lawful activities and is not misleading. We now address whether the state has met its burden to show that the law directly and materially advances a substantial governmental interest and is no more extensive than necessary. We conclude that it has not.”
AB 2571 caused widespread cancellation of youth gun training programs, striking at the heart of gun culture. This was essentially a First Amendment case and that is why gun owners won–the Ninth Circuit is traditionally strong on the First Amendment.
The State, and the Ninth, continue to stubbornly fight against Second Amendment rights, but perhaps we will turn a corner on that soon.
Regardless of that outcome, now that the way is cleared for preliminary injunction, it appears virtually certain that AB 2571 will go down in flames on the merits as well.
So have fun training your kids, and consider doing it for generations with a dynastic F.I.R.S.T. Family Trust.
